Tag Archives: Criminal justice system

Richard Kachkar’s not criminally responsible verdict has divided observers and is fueling the debate on Bill C-54, the Bill to make NCR reviews more restrictive.

There are those who feel that the NCR decision was the right, though imperfect one.

And there are those who are angered by the verdict. They feel that justice was not done; that the jury was duped; and worst of all, that Kachkar’s life is going to be spared while that of his victim was not. To them, a finding of “not criminally responsible” is equal to a full acquittal, a get-out-of-jail free card, a verdict of no repercussions for Kachkar and his actions.

But an NCR finding is not tantamount to escaping justice. And it is not a ticket to freedom. It is the best, albeit imperfect, response that we have to people whose severe mental illness rendered them incapable of formulating the kind of intent that we believe is necessary before someone can be convicted of a criminal offence.

What does an NCR finding really mean?

In legal terms, an NCR finding means that the person who committed an act suffered from a major mental illness at the time of commission of the act, and, as a result of the illness, she or he either did not have the mental capacity to appreciate the nature and quality of the act or did not know that the act was wrong.

In layperson terms, such persons are often delusional or haunted in a manner that makes them out of touch with the reality of what they were doing or why they were doing it.

And, despite the impression that a number of highly-publicised NCR cases may leave, NCR findings are rather rare.

While many people who commit crimes often suffer from varying degrees of mental illness, most of those persons would not qualify for an NCR finding. (Neither would they want to be found NCR, given the severe consequences of such a verdict.)

Before an NCR finding is made, one or more psychiatrists meet with and assess the accused person, and examine all the information available about him from before and after the offence. The psychiatrists’ conclusions, along with any other psychiatric findings, are presented to the court. The court then decides whether or not the person was NCR: whether or not the person suffered from a mental disorder, and that disorder made him or her unable to appreciate the nature and quality of his actions or render him incapable of knowing that the act was wrong.

The consequence for the NCR person, while not as draconian as a jail term, is still severe, still restrictive, and still results in deprivation of her liberty.

In theory, a person who has been found NCR is not supposed to spend any time in jail. In reality, people who have been found NCR often do spend days, weeks, or sometimes even months in jail while awaiting a bed in one of our over-burdened mental health institutions.

After a first assessment, NCR persons often spend years in a psychiatric facility in order to get treatment. They are locked up in these so-called hospitals, until such time as a Review Board deems them safe enough for some form of a leave.

The Review Board is comprised of lawyers, judges, psychiatrists or psychologists, as well as a member of the general public. When an NCR person appears before them for a review (which is currently done on an annual basis), the Review Board examines an array of information, focusing on the treatment the person has received, their progress, their current mental health and their prognosis. The Board considers public safety when deciding whether or not to grant the person some kind of release, be it a permanent one or in the form of escorted day passes.

Review Boards do not make their decisions casually. They know the stakes. They also know that the person before them committed the acts that they did because they were sick. Once that illness is under control, the person no longer poses a risk to society.

Keep those mentally ill people who have recovered from their disease institutionalized longer, as Bill C-54 would, and you endanger their recovery, overburden our already taxed mental health institutions, and keep others who need those beds in jails rather than in hospitals.

But as Bill C-54 and the reactions to the Kachkar verdict prove, many of us continue to look at the mentally ill with suspicion. We wonder if their illness really played a role in their behaviour. Even if we believe that it did, we are doubtful that such persons can ever really be safe. And so, we believe that the NCR finding lets guilty people get away with a horrible crime. These are understandable doubts and fears, but the available facts and data should alleviate these concerns.

In reality, a person who has been found NCR is serving an indeterminate sentence: he does not know when the sentence will come to an end. He is not free to roam in public at any time; he is institutionalized and locked up. And while he may not carry with him the stigma of a criminal conviction, he will always wear the stigma of having committed a heinous act, and of having suffered from a mental illness so severe that he lost touch with reality and committed a horrendous act. His future will forever be shaped and negatively impacted by this horrible disease and event.

The tragedy of a lost life will not be avenged through the punishment of a person who did not fully and consciously intend to cause that loss. Convicting and forever locking up Kachkar and others like him will not bring healing or justice to the victims. It will only make all of us, who do have the full use of our rational faculties, responsible for convicting a person who was too ill to recognize the nature, severity, and consequence of his actions.

Say one thing, do the opposite. That sums up the Canadian government’s approach to the treatment of the mentally ill in the criminal justice system.

“(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities.” Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012. He made this sweeping and dramatic claim in the wake of the release of the Ashley Smithvideos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews’s comments might give an observer hope – hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012. In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be “not criminally responsible,” or NCR, by the courts if this person was unable to “appreciate the nature and quality of his actions” at the time of the offence.

People who are found NCR receive an indefinite sentence. Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment. A panel of experts then annually reviews the inmate’s progress to determine if her mental illness is under control, and if it is safe to release her.

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe. As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions. That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems. Despite that, it will not be the worst offender for putting the mentally ill in jail. A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed “Truth in Sentencing Act” of 2009, which restricted a judge’s ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction. Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons. The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year. Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person’s mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000.00, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health. The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40% of the incarcerated population suffers from a mental disorder. These health problems cannot and will not be remedied in jail. On the contrary, the mental health of these people will often be more acute than before they entered state custody. But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that’s where they’re going.

There is little to no logical connection between the government’s words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.

[1]The examples below are based on actual incidents from around Toronto, but names and other information about individuals have been changed to preserve their identity.

Sheena, Farzaneh and a third classmate were walking in the crowded halls of their junior high, joking around with one another. Sheena and Farzaneh grabbed Kim’s scarf and threw it to one another. After Sheena threw it, she did not see what happened to the scarf, the bell rang, and the girls went into their classroom. Kim could not find her scarf. Upset, she reported it to a teacher. The police were called, and Sheena and Farzaneh were both charged with theft.

Sahir and James were Grade 9 high school friends. One day, for no clear reason, they removed one of the school’s fire extinguishers and sprayed it all over an empty portable classroom. The police were called and Sahir and James were both charged with possession of stolen property (the fire extinguisher) and with mischief.

Mira told the police that Katrina, a landed immigrant, a wife, and a mother of two children, aged 7 and 5, hit and broke her camera at a cultural event attended by hundreds of people. The damages were estimated at $500.00. Without conducting any further investigation, the police went to Katrina’s home, and violently arrested her in front of her two young children. Katrina was charged with mischief. After a year-and-a-half in the criminal justice system, tremendous hardship, and lasting psychological harm to Katrina’s children who became fearful of the police, the Crown Attorney withdrew her charges.

In a different time, in a different place, all of these interactions might have been dealt with reasonably, rationally, and by the community.

In the lost scarf scenario, the teachers, the principal or even Kim’s parents, might have sat down with Sheena and Farzaneh, found out if the incident was truly an accident or a case of excessive teasing. They might have talked to Sheena and Farzaneh’s parents, and enlisted everyone’s help in finding or replacing the scarf. They might have engaged in the kind of conversation that would have helped Sheena and Farzaneh see the impact of their actions, especially if they were bullying Kim. Kim would have felt heard and empowered, and Sheena and Farzaneh would have helped in the healing.

Sahir and James may have received a stern talk from the principal and their parents. Maybe they would have been grounded. Maybe they would have been suspended for a couple of days. They would have helped with the clean-up of the classroom and perhaps paid for any damages. They would have, in real terms, been responsible for their actions. And they would have continued their studies, without the stigma of a criminal charge.

In Katrina and Mira’s case, the police could have investigated the case further, instead of attacking and arresting Katrina in her home, in front of her children. They could have easily found out that another person claimed responsibility for bumping into the camera; and that it was an accident. They could have simply called in Katrina, who would have gone into the police station and told them her version of the events. There was no need to treat her so violently.

In all of the above scenarios, the community and the police had several options available to them to deal with each case comprehensively, responsibly, and in a way that would have satisfied everyone, without causing further harm. Instead, everyone abdicated their own responsibility and immediately opted to use a sledgehammer to kill an ant.

Everyone reached for their guns.

Sheena and Farzaneh, two young girls who had never been in trouble with the law before, were now viewed as “criminals.” They had to take time off school to appear in court several times. They were dragged through the criminal justice system. Police time, court time and legal aid, all limited resources, were wasted on the kind of thing that many view as normal, if undesirable teenage behaviour.

Sahir and James, neither of whom had a criminal record, also got their first taste of an expensive and at times disorganized criminal justice system. Rather than feel responsible for their actions, they felt the heavy hand of the law and the unfairness of a disproportionate response to their actions- actions which, again, at different times, would have been dismissed as “boys will be boys,” as letting off steam. Actions which did not harm any one individual. While we don’t have to excuse or dismiss negative behaviour by young men, there are surely other means of dealing with Sahir and James’s actions than criminalizing them and having their case occupy the criminal justice system for well over a year.

And yet, while every one of us, citizens and politicians, complain about the amount of time and money it takes to get issues resolved in courts, no one is willing to take the simplest, most rational, most sensible step:

To really reduce congestion in the courts, we’ve got to have less cases enter the system, in the first place.

Some cases just don’t belong in the criminal justice system.

There are more effective, more humane, and cheaper ways to deal with some problems.

But instead, we blame not having enough resources. Instead, we blame defence lawyers for standing up for their clients’ rights and ensuring that our legal system does not become abusive. Instead, we make laws that widen the net that traps people into the justice system. Instead, we make mandatory minimum sentences, which will result in more people opting for a trial, as opposed to pleading guilty, therefore clogging the system more. Instead, we take away money from those programs (such as restorative justice ones) designed to resolve conflicts in more meaningful ways that cost less, have greater positive impact, and are less punitive.

Think about it: if you want to reduce hospital and health costs and wait time resulting from smoking, would you hand out more cigarettes, make them easier for young people to obtain, build more hospitals, or would you invest in preventing smoking, in the first place?

If you want to reduce congestion on the roads, would you take away the bicycle lanes, make a rule that everyone has to drive to work, reduce public transit services, or would you make it easier for people to get to their destination without having to drive?

The most effective way to reduce any kind of traffic is to deal with the problem at the point of entry. Everyone of us, and in particular actors in the criminal justice system, need to take responsibility for this.

Parents and educators must demand that schools and the police make greater efforts to teach, preach and practice conflict resolution skills. Let’s not waste resources by calling the police for every lost or broken item. Let’s abandon our zero-tolerance policy toward any aberrant act. Let’s focus on meaningful options for conflict resolution.

Our police should also be trained to avoid laying charges, where the actions are minor and where other, more effective forms of conflict resolution exist and can be helpful. Any criminal lawyer can make a long list of cases where clients were charged with petty offences for actions that were hardly dangerous and that can be dealt with better in other ways. Any criminal lawyer can tell you of cases he or she had where, had the police conducted a fuller investigation, they may not have charged the client. Any criminal lawyer can make a list of cases where there was barely any reliable evidence against their client.

Once the police charge these people, the cases enter the criminal justice system and stay there–rotting, delaying justice, labeling, stigmatizing, and frustrating accused and victims alike.

Crown Attorneys generally do not have the time and sometimes lack the courage, at an early stage, to just pull out cases that don’t belong in the courts. Their policies and directions need to change, as well. That is a crucial step in reducing court congestion.

As a community, we need to be ready to deal with conflicts through mediation and other restorative justice means. As educators, we need to teach young people to understand the impact of their actions and be accountable. We need to help victims feel heard and empowered. We need to help accused persons feel connected and capable of making other choices.

We need to make everyone responsible for the solution, rather just hold the criminal justice system responsible for everyone’s failures.

We need to train our officers to solve conflicts more peacefully and collaboratively, to speak, engage, build trust and help find solutions. And we need to give Crown Attorneys the time, the direction, and the freedom to examine files early on, to determine if the case before them belongs in the criminal justice system, in the first place, and to determine if it should be resolved through alternative means.

It turns out that the best and easiest way to reduce court congestion is also the most sensible, the most ethical, and the most responsible option. We need the political will to implement it. And the political will will come only when voters demand it.